27 June 2002

The Courts have been busy lately.

As many of you probably know by now, the 9th Circuit Court ruled yesterday in the case of Newdow v. US Congress that the Pledge of Allegiance as currently written, including the phrase "under God", is an unconsitutional violation of the Establishment Clause. Most legal experts seem confident that the decision will be overturned on appeal, either before the full 9th Circuit Court or in the Supreme Court.

I really have little vested interest in the case one way or another, but it was an interesting ruling. Part of the question facing the courts is the meaning of and relationship between the US Constitution's two clauses that deal with matters of religion: first, that "Congress shall make no law respecting an establishment of religion" and, second, that it will do nothing "prohibiting the free exercise thereof" (First Admendment). These two clauses can be construed in a variety of ways, legally speaking, and even can be seen as involving a fundamental tension.

For instance, some scholars (e.g., Jane Rutherford, Mary Becker) read the clauses as requiring a strict "wall of separation" between religion and the civil government, commiting government to a secular neutrality towards religion, neither prohibiting its free exercise nor in any way doing anything to promote it. Thus religious citizens are encouraged to embrace their varying versions of Moses Mendelsson's outlook, "Be a man in the streets and a Jew at home." This appears to have been the reasoning of the 9th Circuit Court in the present case in which Judge Goodwin reasoned that no public profession that includes any reference to God could be "neutral with respect to religion" which, apparently, he believes the Establishment Clause to require.

This approach, in itself, however, does not resolve a variety of issues. For example, how should government treat private, self-originating religious expressions within the public square? In the case of Goldman v. Weinberger the courts ruled that it was permissible to forbid a Jewish officer in the US military from wearing a religious headcovering. Was this a limit on free exercise or an attempt to avoid establishment?

To my mind, the "secular neutral" approach tends to pit the two clauses against one another and read the Establishment Clause too strongly. There is the additional difficulty that the supposed "neutrality" this approach takes towards religion is no neutrality at all, but a decided bias against religion, relegating it to the sphere of private religiosity and communicating that God and faith are irrelevant and unwelcome in the public arena.

Other scholars (e.g., Michael McConnell) don't read the Establishment Clause in quite so strong a way, instead seeing it as supporting and undergirding the Free Exercise Clause. Thus the point of the clause is not to prohibit any and all government support for religion, but to prevent government from giving preferential treatment to one religion over another. This more "pluralist" approach allows for government support of religion and general public expressions of religiosity, so long as a variety of religions as well as irreligion are all equally tolerated and welcomed.

Such an approach would be more favorable towards the kind of decision that was made by the Supreme Court today in the case of Zelman v. Simmons-Harris, which ruled that school voucher programs--even ones giving public funds to religious schools--are constitutional and do not violate the Establishment Clause. The reasoning was, in part, that both secular and various religious institutions deserve equal treatment under law and in the public sphere.

The high court, however, has not always been consistent in its rulings and a variety of legal difficulties remain. For instance, can the government can limit or burden the practice of religion with laws that are of general applicability even if that limitation does not constitute a compelling interest on the part of government? Or should the government accomodate religion to some reasonable degree when it violates the laws or those laws impose a burden upon its free exercise?

In Employment Division of the Oregon Deptment of Human Resources v. Smith the court decided that it was permissible to fire Native American government employees who occasionally used peyote sacramentally in worship since peyote use is a violation of law. On the other hand, thousands of churches across the nation freely promote underage consumption of alcohol every Sunday in the celebration of the eucharist. Was free exercise violated in Smith?

And, even more schizophrenically, the court ruled in the case of Wisconsin v. Yoder that Amish school children were to be released from the final two years of compulsory education requirements (7th and 8th grades) since the additional two years would be an undue burden upon the Amish way of life and thus undermine free exercise.

The philosophical issue that interests me is that, in whatever way limits on free exercise are constructed, these limits will have to have some basis in a value-laden outlook on what constitutes "compelling interest" on the part of government and the like. For instance, Jehovah's Witnesses are opposed to blood transfusions as a violation of the biblical prohibition upon consuming blood. Yet, when the child of a Witness is in medical need of such a transfusion the US courts don't hestitate to order that the procedure be carried out, even against the parents' wishes and religious convictions. The compelling interest that the government has in protecting the lives of its citizens is seen as outweighing any claim to free exercise on the part of the parents.

But on what ethical basis is this "compelling interest" established and isn't the government imposing its interests upon unwilling citizens some form of "establishment," at least philosophically and ethically, even if not, strictly speaking, religiously? I certainly can concur with the courts as a Christian since I find the biblical application to blood transfusions unconvincing and believe that life in the image of God is to be valued and preserved. But those are my religious values and, from the perspective of the courts, they have no business undergirding court orders.

In any case, there is a complex of issues involved that goes beyond mere Constitutional interpretation.